Excerpt:trust and societies - grant of hereditary trusteeship - article 19 of constitution of india and section 5 of madras hindu religious and charitable endowments act, 1951 - petition filed for writ of certiorari for grant of hereditary trusteeship and management under madras act - all management rights of religious institutions vested in 'mahants' as per madras act - after enactment of hindu religious endowments act 'mahant' not nominated to committee for administration - petitioner alleging that management rights devolved on him as per madras act - madras hindu religious endowments act came into being long before commencement of constitution of india - article 19 cannot revive right which has ceased to exist long before constitution came into effect - held, petition declared inoperative and.....p. chandra reddy, c.j.1. this is a petition under article 226 of the constitution of india by the mahant, sri hathiramji mutt, tirupati, for a declaration that the madras hindu religious endowments act of 1923, madras act i of 1925. madras act ii of 1927, madras act xix of 1933, madras act xix of 1951 and andhra act vii of 1954, in so far as they are inconsistent with the constitution, are ultra vires and inoperative. in order to appreciate the contentions urged in support of this petition, it is useful to notice the historical background of the case.2. on a range of hills called tirumali hills, the ancient and the famous shrine of lord venkatesh-wara is situate, this was founded in the hoary past and it is not known when exactly it came into existence. originally the temple seems to have.....

Judgment:

P. Chandra Reddy, C.J.

1. This is a petition under Article 226 of the Constitution of India by the Mahant, Sri Hathiramji Mutt, Tirupati, for a declaration that the Madras Hindu Religious Endowments Act of 1923, Madras Act I of 1925. Madras Act II of 1927, Madras Act XIX of 1933, Madras Act XIX of 1951 and Andhra Act VII of 1954, in so far as they are inconsistent with the Constitution, are ultra vires and inoperative. In order to appreciate the contentions urged in support of this petition, it is useful to notice the historical background of the case.

2. On a range of hills called Tirumali hills, the ancient and the famous shrine of Lord Venkatesh-wara is situate, This was founded in the hoary past and it is not known when exactly it came into existence. Originally the Temple seems to have been under the management of the local rulers for the time being. After the advent of the British, the management was with the East India Company. After the Regulation, VII of 1817, was passed, the administration of all the Temples in the State was vested in the Board of Revenue. The Board used to exercise control over these institutions through the Collectors of the various districts and the local agents.

In a despatch of the year 1841, the Court of Directors issued instructions ordering the immediate withdrawal from all interference on the part of the officers of Government with native temples and places of religious resort. Pursuant to this, the Board of Revenue at Madras made over the management of the temple in 1843, under a 'sanad', which is marked as Ex. 1 in this case to one Seva Doss, the Head of a Mutt called Hathiramji Mutt, situated at the base of the Hills. Subsequently, the then Government thought it desirable to strip themselves completely of all control over the temples and other religious institutions situate in India. To give effect to this Act XX of 1863 (The Religious Endowments Act) was passed by the Central Government.

In accordance with this, the Board of Revenue divested itself of all powers so far as the religious institutions in the State of Madras were concerned, including the temple of Lord Venkateshwara. Unfortunately, the expectations of the Board were not answered so far as this institution was concerned. Ever since Mahants came to be associated with the management of the temple, things were goingfrom bad to worse and the successive Mahants used to indulge in embezzlement, misappropriation, etc., in short, they were making use of the funds of the institution freely for their personal advantage and for the aggrandisement of the Mutt.

3. We get glimpses of the condition into which the institution had drifted after it came under the management of the Mahants in Prayag Dossji Varu v. Srirangacharlu Varu, ILR 28 Mad. 319. That Judgment shows that the history of the association of the Mahants with this institution was a record of waste and embezzlement This has led to the filing o a suit by the worshippers interested in the proper management of the institution, and a scheme was framed by the District Court of North Arcot of which Tirumalai and Tirupati formed part. With some changes, the scheme was confirmed by the High Court of Madras in the decision cited above. On appeal, the Privy Council modified the scheme in certain respects. Their Lordships of the Judicial committee quoted with approval a passage in the judgment of the High Count which sets Out the various acts of mis-management and embezzlement of the Mahants and stated that it was indisputable that there was a necessity for the framing of a scheme for the temple in question.

4. Ever since, the temple was governed by the scheme framed by the District Court as eventually modified by the Privy Council in or about the year 1907, when the Madras Hindu Religious Endowments Act, 1926 (Act II of 1927) was passed by the Madras Legislature for the better administration of the temples in the Province. In and by that Act, all the schemes framed by the Courts were deemed to be schemes by force of Section 75 of that Act. This Act of 1927 did not very much interfere with the management of the above named institution.

5. It was only by the Tirumalai-Tirupati-Devasthanams Act, 1932 (XIX of 1933) that several changes were introduced in the administration of this temple. Section 2 of this Act is in these words:

2(1): On the coming into force of this Act-(a) The arrangement made by the Provincial Government in 1843 for the management of tha Tirumalai-Tirupati Devasthanams and the scheme settled by the Privy Council in Appeal No. 6 of 1906 together with the rules framed thereunder, shall cease to be operative; and

(b) the provisions of the Madras Hindu Religious Endowments Act, 1926, except Section 44-A shall cease to apply to the said Devasthanarns. We shall also notice Sections 5 and 6 since they also form part of the subject-matter of enquiry in this writ petition.

Section 5: The administration of the devasthanams shall vest in a committee called the Tirumalai-Tirupati Devasthanams Committee, which shall be a body corporate, having perpetual succession and a common seal, and shall sue and be sued by the said name.

Section 6(1): The Committee shall consist of seven members appointed by the Provincial Government of whom the Mahant, if willing to serve, shall be one.

(2) Every member shall hold office for a period of three years from the date on which his appointment is notified in the official Gazette. It is not necessary for us to extract the other provisions of the Act, as they do not have much bearing in the context of this writ petition.

6. In exercise of the powers conferred by the Government under Sections 5 and 6 of the Act, the Mahant was appointed one of the members of the committee. The successive Mahants were being appointed as members of that committee. This state of affairs continued till 1951 when the MadrasLegislature passed the Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act 19 of 1951) to place the managements of the various religious institutions on a better footing. By section 5 of that Ad, the Madras Hindu Religious Endowments Act, 1926 (Act 2 of 1927) and the Tirumalai Tirupati Devasthanams Act 1932 (19 of 1933) were repealed. It was also provided by that section that the repeal shall not revive the arrangement made by the Government in 1843 for the management of the Tirumalai-Tirupati Devasthanams or the scheme settled by the Privy Council in appeal No. 6 of 1906 or the rules framed under such scheme. Despite this, the Mahant was appointed one of the members of the Committee and he continued to be a member of the committee till 1954. Subsequently he was not nominated to the committee. Being aggrieved the petitioner has moved this Court for the issue of a writ of certiorari for the reliefs mentioned above.

7. In support of this petition, it is urged that the hereditary right of management which was vested in the Mahants of Sri Hathiramji Mutt by the sanad of 1843 and also by Act XX of 1863, which is a species of property, was taken away by the enactments of 1933 and 1951 and consequently these legislations must be struck down as they are opposed to the fundamental right guaranteed to the petitioner and his predecessors under Article 19 of the Constitution. The attack mainly centred against Section 6 of Act XIX of 1933 and Section 5 of Act XIX of 1951. The argument pressed upon us is that Section 5 has deprived the Mahants of a fundamental right which enured to them by reason of Chap. III of the Constitution and since they are inconsistent with the Constitution, they should be declared void and inoperative. Section 5 of Act XIX of 1933, though curtailed the right of the Mahant, has preserved it in a restricted form and since even that right was destroyed by the latter enactment, i.e., Act XIX of 1951, this should be struck down, as it is violative of the principles embodied in Article 19 of the Constitution.

8. At the inception, we should observe that a declaration that Section 8 of Act XIX of 1933 is in conflict with the 'fundamental rights' does not really help the petitioner for the reason that it is not Section 6 that has resulted in depriving the Mahant of the Management of the institution. That section only fixes the number of members to the Tirumalai-Tirupati Devasthanams committee, the duration of the term of office and it is by virtue of that provision that the Mahant could claim to be a member of the Committee. Even if that section is deleted, it would not advance the case of the petitioner very far, because it is Section 5 that has vested the administration of the devasthananis in a committee called the Tirumalai-Tirupathi Devasthanam. However, it is unnecessary for us to pursue this matter in the view we have taken on the various other contentions.

9. Since the decision of this petition depends upon whether the right of management which the Mahants had would constitute 'property', it is useful to determine the nature of the office which the Mahants held vis-a-vis the temple of Lord Venkate-shwara. It is to be noticed that under the sanad the Mahant was appointed the Vicharanakartha of the institution for the first time. As already pointed out, prior to 1843, the institution was being managed by the Board of Revenue and before that by the East India Company and still earlier by the Native Rulers. It is no doubt true that the sanad provided that the successive Mahants will be Vicharanakarthas of the temple; would this create a hereditary tenure as to amount to 'property' within the purview of Article 19(1)(f) of the Constitution? It is to be remembered that the right of the Mahants to be associatedwith the management is not founded on the original constitution laid down some centuries ago; then much of the difficulties will disappear.

This is not a case where the founder of a temple has provided for devolution of the office in a particular manner. It is only in cases where a line of succession is provided by the founder of an institution, the office of the trustee could be said to be hereditary. We are aware that in several cases it has been laid down that where the trusteeship is vested in a family for four or five generations, the office should be regarded as a hereditary one. The ratio decidendi of those rulings was that the holding of office for a number of generations was presumptive evidence of the founder's wishes or of the rule of succession laid down by him. That can have no application to a case which owes its origin to an arrangement by the proper authorities for the continuous management of an institution. It is difficult to predicate that such an arrangement would fulfil the definition of a hereditary trustee.

10. In this regard, we may usefully refer to ILR 28 Mad 319 at p. 324. Dealing with the position of the Mahant, the Learned Judges observed thus:

'......the Mahant is not a trustee derivinghis power of management under the constitution, originally laid down centuries ago. As already pointed out, the institution was completely under the control of the public authorities upto 1843, and when the management was transferred to the Mahant in that year, it was an arrangement made by the Board of Revenue in whom the control of such institutions was then vested under the Regulation of 1817.'

In this connection, the observations of Sadasiva Ayyar, J. in Phatma Bi v. Haji Musa Sahib; ILR 38 Mad 491: (AIR 1914 Mad 714) are pertinent and they are as follows;

'The holding of any office should depend on the necessary qualifications and, which heredity, might raise a feeble presumption of fitness to be considered by Courts in arriving at a decision on the question of successorship to the office, it should not be raised to the dignity of a principle which creates a right of succession to any office, unless, the terms of the original foundation of the office constrain the Court to treat heredity as the factor to be considered in deciding on the right to the office or unless there has been such a precise and uniform course of descent by heredity almost irrespective of any considerations as to the person best fitted for the office as to raise an irresistible inference as to the intentions of the original creator of the office.'

11. It is plain that the uniform course of descent by heredity, in the absence of the terms of the original foundation of the office, would only furnish prima facie evidence as to the intentions of the original creator of the office.

12. The statement of law contained in the Tagore Law Lectures on the 'Administration of Mutts' is to the similar effect and is quoted below. (Page 345 in 'The Hindu Law of Religious and Charitable Trust by B. K. Mukherjea).

'The legal principle seems to be that the wishes of the grantor are to be primarily respected in such matters, but when there is no evidence of any direction given by the founder, the usage or practice that obtains in any particular institution is to be regarded as presumptive evidence of the grantor's intentions.'

13. Again, the office which the mahants were holding in relation to the temple could not be aptly described as dharmakarthaship. The mahants hadonly been Vicharanakarthas, an office different from dharmakarthaship.

14. Sri Sadagopa Rananuja Pedda Jiyyangarlu v. Sri Mahant Ram Kishore Dossjee, ILR 22 Mad 189 reveals that the two offices were separate, thedharmakarthas being Pedda Jiyangars. There was a well-marked distinction between the two. Act XX of 1863 maintained the distinction between a trustee, etc.

15. Assuming the office of vicharannkartha had incidents similar to that of a trustee, that does not make very much difference for the purpose of the inquiry and it need not detain us any further.

16. There is also another answer to the contention of the petitioner that the mahants could not be deprived of a right which was vested in them by the sanad of 1843. Sri Subrahmanyam contended that the arrangement envisaged in the sanad of 1843 & in Act 20 of 1863 should be equated to a scheme framed by the Court under Section 92 of the Code cf. Civil Procedure. The position then is this.

17. The scheme laid down a particular mode of administration and created an office to give effect to it. Such a scheme is always liable to be suitably modified or even annulled by the very authority which settled it or by another competent authority. If the modification results in the abolition of the office or in replacing it by another, that would not afford a cause of action to the erstwhile office-holder. The proper authority for religious institutions in the year 1843 considered that the management of the institution could be conveniently entrusted to the Head of the Hathiramji Mutt, situated at the foot of the Hills. When in the opinion of the succeeding authority that arrangement proved detrimental to the institution andcould not profitably be continued, surely it could change and adopt one that served the best interests of the temple.

18. It is well within the powers of the State whose act is alleged to have created the office to introduce changes leading to the abolition of that office by a legislative measure. Act 19 of 1933 is designed to achieve improvement in the administration of the temple in question by putting an end to the previous state of affairs and to vest the management in a Committee. The preamble to the Act clearly sets out the reasons therefor.

19. In the circumstances, the petitioner could not make a grievance of the changed circumstances brought about by Act 19 of 1933.

20. However, we need not pursue this matter any further having regard to the fact that there is a formidable objection to the petition. Act 19 of 1933 is impugned on the ground that it is obnoxious to Article 19 of the Constitution. The main attack against that statute is that it has deprived the mahants of their right which they possessed previously and this violates the principle enshrined in that article. We do not think we can assent to this view granting that the Vicharanakartaship of the temple constitutes a property within the purview of Article 19. That article would not avail the petitioners as the alleged right ceased to exist long before the Constitution came into effect. The Constitution is not retro-active but is only prospective in operation and consequently, the rights which were extinguished prior to the inauguration of the Constitution cannot be revived by the Constitution. It is only the fundamental rights that were in existence at the commencement of the Constitution that are saved and protected by Part III of the Constitution and not those which were lost long before.

21. Section 2 of the above-mentioned Act has in express terms stated that the operation of thearrangement contemplated by the sanad of 1843 and the scheme mentioned supra stood abrogated on the date that Act came into operation. It specifically states that they had ceased to be operative. Consequently, whatever rights the Mahants might have had under the sanad or the scheme, had become extinct by the operation of Act 19 of 1933. In that situation, recourse could not he had to any of the provisions of Chapter III of the Constitution.

22. Sri Subramanyam, learned counsel for the petitioners, invites us to construe the expression 'shall cease to be operative' as 'shall be suspended.' We do not think we can give weight to it. The word 'cease' means discontinue or 'put an end to.' It means that the scheme and the sanad were no longer operative and the rights, if any, accruing therefrom are extinguished. There is no scope for importing any notion of suspension into, that expression. Its only import is that they are discontinued once and for all.

23. It is next argued by him that if that clause was susceptible of any other interpretation the Legislature would not have said in Section 5(2) of Act XIX of 1951 that 'the repeal shall not revive the arrangement made by the Government in 1843 for the management of the Tirumalai-Tirupati Devasthanams or the scheme settled by the Privy Council in Appeal No. 6 of 1906 or the rules framed under such scheme.'

24. This submission is inadmissible. The language of Section 2 is unambiguous and does not leave any room for doubt. The intention of the Legislature to discontinue them is expressed in clear terms. So, it is by force of Section 2 that they are extinguished and not by the impugned clause in Section 5. This was evidently introduced to obviate any mis-conception as to the result of the repeal of Act XIX of 1933. That cannot give rise to an argument that but for Section 5 of the latter Act the arrangement embodied in the sannad and the scheme, could not have come back to life. De hors that clause, there could be no resuscitation of those things. Section 8 of the General Clauses Act achieves the very purpose which is attributed to the offending clause in Section 5 of Act 19 of 1951. Section 8 says:

'Where any Act, to which this Chapter applies repeals any oilier enactment, then the repeal shall not: '(a) affect anything done or any offence committed or any fine or penalty incurred or any proceedings begun before the commencement of the repealing Act; or (b) revive anything not in force or existing at the time at which the repeal takes effect; or (c) affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed; or (d) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (e) affect any fine, penalty, forfeiture or punishment incurred in respect of any offence, committed against any enactment so repealed; or (f) affect any investigation legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such fine, penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.'

By reason of this section even, if the object of Section 2 of Act XIX of 1933 was only suspension, that suspension is continued. It is only by enacting specifically, that the arrangement contained in the sanad and the scheme could be brought back to life. In the absence of such express words they would not become active again.

25. It is alternatively argued by Sri Subramanyam that since the Act, which operated to deprive the petitioner of his right, was in force at the time when the Constitution came into play, the Court should strike it down as offending against the provisions of the Constitution. To substantiate this proposition, reliance is placed by the learned counsel on Narayanan Nambudripad v. State of Madras, : AIR1954Mad385 and also Shantisarup v. Union of India, (S) : AIR1955SC624 . We are not inclined to read these rulings as lending any countenance to the submission of the learned counsel for the petitioner. In the first of the two cases, the Hindu Religious Endowments Board framed a scheme for tho management of a Karikkat temple in Malabar. Under the terms of that scheme, an Executive Officer was to be appointed in whom practically the whole management of the institution was vested. A scheme was framed shortly before the inauguration of the Constitution. The Executive Officer gave notice to the trustee to hand over the management to him after the Constitution came into force. It was observed by the learned Judges that the effect of the appointment of an Executive Officer was to abridge the right of the hereditary trustee, and to reduce the content of his powers substantially. It has to be seen that in that case the right of the trustee was not destroyed before the Constitution came into force although by reason of the scheme it was sought to be impaired to a large extent. Therefore the provisions of the Constitution could be taken advantage of by the petitioners therein. That case, cannot have any analogy to the one on hand.

26. Similar is the position with regard to (S) : AIR1955SC624 . Here again, the partners of a firm were sought to be deprived of the right of management by an order of the Government of U. P. purporting to have been made under Section 3(f) of the Industrial Disputes Act, 1947, by which one of the partners of the firm was authorised to carry on the undertaking. The Union of India later on wanted to accomplish the same object by issue of an order purported to have been made under Section 3 of the Essential Supplies (Temporary Powers) Act of 1940 by which the same person was authorised to run the said undertaking to the exclusion of all other partners. The Supreme Court declared both the orders as inoperative, being opposed to the provisions of the Constitution. It is worth the remark that the order of the Central Government was issued only after the Constitution, though that of the U. P. Government was earlier. Dealing with the order of the U. P. Government which is construed as being derogatory to the rights of the other partners, their Lordships observed:

'But even assuming that the deprivation took place earlier and at a time when the Constitution had not come into force, the order effecting the deprivation which continued from day-to-day must be held to have come into conflict with the fundamental rights of the petitioner as soon as the Constitution came into force and became void on and from that date under Article 13(1) of the Constitution.' It is this passage which was called in aid by the learned counsel for the petitioners and which formed the foundation of the argument that although the right had ceased to exist by the time of the Constitution, still since the law was alive at the date of the Constitution, that law should be struck down as infringing the principles of Part III of the Constitution with the consequence that he would be restored to the position which he kept prior to the passing of Act 19 of 1933. We do not think that effect can be given to this contention. In construing that pronouncement, it could not be overlooked that the partners had not ceased to have any interest inthe concern. The effect of the orders impeached was to take away management from the petitioners therein and entrust it solely to one of the partners. In other words, the partners were being deprived of their right to possession. That was an instance of interference with a right which had not ceased to exist by the time of the commencement of the Constitution. As such the aggrieved parties could legitimately invoke the jurisdiction of the Supreme Court to protect that right. That is not a case where the right to property had already been extinguished. There is also another distinguishing feature in that case. The order of the U. P. Government which was called in question was void even before the Constitution cams into effect. The order which was purported to be issued under the Industrial Disputes Act was not warranted by the provisions of that very Act. Since that order was a nullity it could not in any way affect the rights of the parties. Consequently, the doctrine of that case can have little application to a case where rights, if any, were extinct before the Constitution came into effect. It is to be remembered that when Act 19 of 1933 was passed it was a valid piece of legislation and in fact the competence of the Legislature to make that law is not questioned before us. All that was required under the Government of India Act, 1915, was to obtain the sanction of the Governor General. There was no other fetter on the authority of the concerned Legislature. All that is contended now is that since that statute comes into conflict with Article 19 of the Constitution, it should be declared void by reason of Article 13. As already pointed out, the articles of the Constitution could not come to the rescue of a person who had lost his alleged right long before the coming into operation of the Constitution.

27. In this regard, it is sufficient to refer tothe principles enunciated by the Supreme Court inKesavan v. State of Bombay, 1951 SCJ 182: (AIR1931 SC 128) as also in Nabhirajaiah v. State ofMysore, : [1952]1SCR744 . It was laid down therethat if a particular right was lost before the Constitution was inaugurated, Article 13 could not be attracted. A later decision of the Supreme Court contains the principle that if as a result of a valid legislative enactment a party has lost any right, the relevant clause of the Constitution could not be calledin aid to restore the right already extinguishedsince it could not be said that that law contravenedthe provisions of Article 13 of the Constitution. It:follows, therefore, that Article 19(1)(f) is not of muchavail to the petitioner.

28. It looks to us that on another ground also the petitioner has to be put out of court. Admittedly, ever since Act 19 of 1933 was passed, the successive Mahants have had accepted nomination from the Government in exercise of the powers conferred by that Act on the latter. In other words, he had received a benefit under the Act and had acquiesced in it. Consequently, it was not open to mm to challenge the validity of that Act. In Venkatasubbarao v. Ramakrishna Rao, (1958) 1 Andh WR 331: (AIR 1958 Andh Pra 322) one of us referred to Madhao Gopal v. Secy. of State, AIR 3939 Nag 44 in which Justice Niyogi and Justice Gruer stated the rule thus:

'It is true that an ultra vires statute cannotbe validated by acquiescence, but it it equally truethat an acquiescing party may be estopped fromquestioning it.'

With respect, we express our accord with thisprinciple.

29. There are various other reasons why this petition cannot be allowed. The Constitution with the provisions of which the impugned Acts are supposed to be inconsistent, came into vogue on26-1-1950 and this petition was filed five years nine months thereafter. Even Article 19 of 1951 was passed nearby five years before the jurisdiction of this Court is invoked under Article 226 in this petition. It is well settled that the jurisdiction of this court will not be exercised in favour of persons who are guilty of laches and inordinate delay. The explanation furnished by the petitioner for this long delay is not a tenable one and does not help him very much. Further, declarations are not granted by this Court by the issuance of a writ of certiorari. Declaration of right is not a form of relief which is appropriate to proceedings under Article 226 of the Constitution. It is only for the enforcement of a right that these extraordinary powers of the High Court could be invokecd. In this petition, the only relief which the petitioner has sought is a declaration that all the enactments bearing on the administration of religious endowments mentioned in the petition should be declared void and inoperative. It follows that this petition should be dismissed with costs, two sets--Advocate's fee in each being fixed at Rs. 250/-.

30. The other CMFs. (CMPs. 3376/57, 4733/57 and 9008/58) are dismissed.